Estate of N Fisher v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 290 /2008 Al 392/04 IN THE MATTER The Injury Prevention Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal by the ESTATE OF N FISHER Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on Friday 5 December 2008 DATE OF THIS DECISION (o December 2008 APPEARANCES/COUNSEL No appearance for appellant Ms C Potter, counsel for ACC DECISION OF JUDGE P F BARBER [1] When this matter was due to be called at 10.00 am on Friday 5 December 2008 Mrs M Fisher, the widow and representative of the late Mr N Fisher (i.e. of the appellant estate) was not present so that I stood the appeal down and had my registrar ring Mrs Fisher on five occasions from 10.22 am. Initially there was no answer, but from 10.35 am the telephone was busy. There was no voicemail available for my registrar to leave a message. As recently as Wednesday 3 December 2008 my registrar had been in communication with Mrs Fisher regarding this fixture because it was then changed from 2.15 pm Thursday 4 December 2008 to 10.00 am Friday 5 December 2008 to enable me attend the funeral of a deceased former judicial colleague. [2] When the case was formally called at 11.03 am Friday 5 December 2008, Mrs Fisher was not present and could not be found in the precincts. I was satisfied that all proper procedures had been followed leading to this fixture for this appeal. I was conscious that there had been several adjournments previously at the request of Mrs Fisher who had frequently, if not always, appeared reluctant to have this case commence. [3] Accordingly, I then struck out the appeal pursuant to s. 161(3) of the Injury Prevention, Rehabilitation, and Compensation Act 2001 on the basis that either the 2 appellant had without reasonable excuse failed to appear at the appointed time for the appeal and/or the appellant had not prosecuted the appeal with due diligence. then added that not only would I record the position in writing, but also would refer to my assessment of the merits of the issues from the material presently before me. I. now do that as follows The Issue [4] The appeal concerned the correctness of ACC's 15 July 2003 decision declining the appellant's claim for cover for medical misadventure. From the outset, counsel for ACC emphasised that ACC sympathised with the impact of the late Mr Fisher's death on his family, Background and Evidence [5] In September 1992, Mr Fisher was diagnosed with chronic lymphocytec leukaemia. 6] Mr Fisher was initially observed and given no treatment but, with evidence of progression, was commenced on chlorambucil in 1995. Mr Fisher responded to this treatment but, subsequently, required further courses of chlorambucil. The last was in June 1997. [7] In October 1997, Mr Fisher received more intensive treatment with fludarabine. This treatment was continued until late 1998 when there was further evidence of progression. [8] At this time, Mr Fisher was given the option of exploring immunotherapy on a trial basis but he did not complete his trial treatment because of technical problems involved in the trial. [9] By August 1999, Mr Fisher's disease had progressed further and he was offered treatment with CHOP chemotherapy. Although there were temporary responses to the CHOP chemotherapy, the treatment did not alter the progressive nature of Mr Fisher's underlying disease. [10] In February 2000, Mr Fisher began treatment with a more palliative approach. He was also given intravenous immunoglobulin infusions in the hope of preventing recurrent infections. [11] In August 2000, Dr John Carter reviewed Mr Fisher in the Haematology Outpatient Clinic, with regard to the impact of his progressive disease, the recurrent infections, and the treatment and its effects on Mr Fisher's ability to continue working. [12] On 12 April 2001, Mr Fisher was admitted to Wellington Hospital following a fall at home. As a result of the fall, it was documented that Mr Fisher had suffered a fracture of the right humeral head and also soft tissue injuries, with laceration of his left wrist and bruising around his left shoulder and left flank. [13] Mr Fisher was subsequently admitted to the oncology ward in light of his progressive leukaemic disease and was treated symptomatically. On that admission, Mr Fisher was also found to have a severely abnormal blood picture, widespread and 3 massive lymphadenophthy and massive hepatosplenomegaly. Sadly, Mr Fisher suddenly died on 14 April 2001. [14] On 15 April 2001 a post mortem was performed at the Estate's request. The post mortem documented the following findings: . . .. "1. Chronic lymphatic leukaemia with marked splenic enlargement and massive intra-abdominal lymphadenophthy. The histology of a number of organs including the heart, lungs and kidneys showed filling of the vascular spaces with aggregates of neoplastic lymphocytes. 2. Bleeding diathesis with haemorrhage into tumour tissue and lungs. These areas of haemorrhage appear to be secondary to tumour infiltration and the known thrombocytopenia. 3. Bronchopneumonia. 4. There was no evidence in the post mortem findings to suggest that the patient's fall and injuries had contributed to his death. In particular the brain and meninges appeared normal with no intracerebral or subdural haemorrhages." [15] On 4 January 2002, Mrs M Fisher submitted an ACC injury claim form for medical misadventure on behalf of the Estate [16] The Estate alleges that, following the failure to obtain Mr Fisher's fully informed consent to chemotherapy treatment, this treatment resulted in the reduction of Mr Fisher's cognitive ability and motor skills which led to his fall from which he sustained injuries to his head, humerus, chest and abdomen; and died. [17] Subsequently, ACC undertook an investigation into the Estate's claim. [18] On 15 July 2003, ACC issued a preliminary decision declining the Estate's claim for cover because there was insufficient information available to accept the claim and the expiry of the nine month deadline had been reached. ACC confirmed, however, that while the claim had been declined, the medical misadventure investigation would continue and once the information from the independent advisors had been received, ACC would revoke its decision and issue a new decision in relation to the Estate's claim. Subsequently, ACC wrote to the Estate on 27 August 2003, confirming: "The investigation is now complete and a decision declining Neil's claim has been made because it does not meet the criteria for medical misadventure. A report on the reasons for this decision is enclosed. This is a fresh decision and revokes the previous decision of 15 July 2003". [19] On 16 November 2003, Mrs Fisher applied to review ACC's decision dated 27 August 2003, on behalf of the Estate. The Review Decision [20] By decision of 27 February 2004, the Reviewer, Mr Ken Howell, concluded that ACC's decision of 27 August 2003 was not a decision in terms of the Act. However, 4 the Reviewer granted an extension of time in relation to a review of ACC's decision of 15 July 2003 and therefore found jurisdiction to hear the Estate's application for review of that decision. The hearing of the review application took place on 16 June 2004. [21] On 5 July 2004, Mr Howell, issued his decision in which he dismissed the Estate's application and concluded: "... It is Mrs Fisher's belief that while Mr Fisher had terminal cancer, the accident that occurred on 12 April 2001 was the cause of his death. She believes that he did not give informed consent to chemotherapy treatment and the side effects of this treatment caused his accident. For any claim of medical misadventure to be successful, there must be a physical injury. Mrs Fisher's submission is that the medical certificate of the causes of death has more weight than the post mortem. She further submitted that the post mortem was flawed because it was done "in house". There is no evidence whatsoever that the post mortem by Dr Delahunt is in any way flawed, tainted or has come to incorrect conclusions. A post mortem report must carry more weight than a medical certificate. He has concluded that Mr Fisher died as a result of complications arising from his cancer. Two independent reports confirm the conclusion that Mr Fisher's fall was not the cause of this death. There is no evidence of any physical injury as needed by s.26 of the Act and this claim must fail. I note that Mrs Fisher raised concerns as to inaccuracies of Dr Carter's letter and a report from Capital Coast Health. She is clearly correct in regards to some of these details, but these concerns are not part of my jurisdiction. Similarly she raised other matters such as informed consent which I have no need to rule on because no physical injury has been established". [22] On 30 July 2004, Mrs Fisher filed a notice of appeal in the Wellington District Court on behalf of the Estate. Reasoning [23] There has been extensive medical evidence. There is a 25 March 2003 report from Wellington Cancer Centre about the appellant estate's claim. That was written by Drs John Carter, Associate Professor of Haematology and Dr Kenneth Romerill, Consultant Haematologist. Then, on 8 July 2003 Stephen J Palmer, Consultant Haematologist, provided a report to ACC in relation to the circumstances of Mr Fisher's death. There was a further full report of 13 July 2003 from Dr Steve Gibbons, Haematologist. [24] The relevant legislation is the 2001 Act before it was amended as at 1 July 2005 in relation to the concept of "treatment injury". To gain an entitlement to cover as a result of medical misadventure, the estate must establish that Mr Fisher suffered a personal injury as defined in s.26 of the 2001 Act. Section 32 of the Act dealt with personal injury caused by medical misadventure, and ss.33 and 34 dealt with medical error and medical mishap respectively. 5 [25] The onus is on the appellant Estate to establish, on the balance of probabilities that it has a valid claim for cover for personal injury caused by medical misadventure. However the appellant does not satisfy the criteria for medical misadventure pursuant to s.32(1) of the IPRC Act as it read at material times. To satisfy the criteria of medical mishap, the Estate is required to establish that Mr Fisher suffered a personal injury as a result of medical treatment. [26] It is the Estate's submission that, following the failure to obtain Mr Fisher's fully informed consent to chemotherapy treatment, this treatment resulted in the reduction of Mr Fisher's cognitive ability and motor skills which lead to his fall from which he sustained injuries to his head, humerus, chest and abdomen, and died. However, the medical evidence does not support that submission. Instead, the medical evidence shows that Mr Fisher died as a result of his progressive leukaemia. [27] The Estate contends that Mr Fisher did not provide fully informed consent to the chemotherapy treatment he received. However, Wellington Cancer Centre's 25 March 2003 report confirms that discussions were held with Mr and Mrs Fisher about Mr Fisher's disease progression and the treatment options available to him. [28] Further, in his 8 July 2003 report, Stephen J Palmer confirms: "Medical error is claimed on the basis that appropriate consent was not obtained for the administration of COHP chemotherapy. However there is considerable documentation that this patient was fully informed at all stages of his treatment. There is documentation both from Dr John Carter and Dr David Ritchie concerning discussions on the use of dendritic cell infusions as part of the dendritic cell immunotherapy trial. A letter from Dr Buyck on 21/7/99 documents that appropriate discussions concerning the use of CHOP chemotherapy had been held on 20/7/99. Dr Julia Phillips likewise documents discussion regarding limited treatment options available to the patient in a letter dated 15/12/00. There is not universal use of written consent forms in order to document obtaining informed consent in patients receiving chemotherapy. The documentation available in this patient's chart reassures me that this patient was fully informed about all his treatments". [29] The evidence does not support the appellant's submission that Mr Fisher was not fully informed with regard to his treatment options and the associated risks involved, or that he would have chosen not to proceed with the treatment on the basis of those risks. [30] The medical evidence clearly shows that Mr Fisher's death was as a result of complications from his extensive chronic lymphocytec leukaemia and not from the effects of the trauma for which he was admitted on 12 April 2001. [31] The Estate cannot establish the criteria for cover under s.32 of the IPRC Act as all the medical evidence shows that Mr Fisher's death was not caused by his fall on 12 April 2001, but by his extensive leukaemia. [32] As the personal injury criterion has not been met, the medical error provisions found in s.33(1) of the IPRC Act (as it then read), do not apply. Medical error is defined as "the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances" 6 [33] As the personal injury criterion has not been met, the medical mishap provisions found in s.34 of the IPRC Act do not apply. The medical evidence confirms that the treatment, which Mr Fisher obtained for his chronic lymphocytec leukaemia, did not cause his death on 14 April 2001. In particular, in late 2000 it was discussed with Mr Fisher that he was entering into the terminal stages of his chronic lymphocytec leukaemia and that palliative care would now be more appropriate, as opposed to . further treatment options. [34] The Estate does not satisfy the criteria for medical misadventure pursuant to s.32(1) of the IPRC Act 2001. The medical evidence confirms that Mr Fisher died on 14 April 2001 as a result of his terminal chronic lymphocytec leukaemia and not as a result of his fall on 12 April 2001. [35] However, as indicated above, the appeal has been struck out for non prosecution so that it is hereby dismissed. Judge P F Barber District Court Judge WELLINGTON Al 392-04.doc(aw)